Liberty Group Ltd v Erasmus NO (54534/2011) [2018] ZAGPPHC 497 (11 July 2018)

Liberty Group Ltd v Erasmus NO (54534/2011) [2018] ZAGPPHC 497 (11 July 2018)

The court held that service of summons on one surety does not interrupt prescription against another surety of the same principal debtor. The obligations of co-sureties are independent and accessory only to the principal debtor, not to each other. The extension of the common law exception, whereby interruption of prescription against the principal debtor interrupts prescription against the surety, does not apply in reverse or to co-sureties. The court found no authority in Roman law, Roman-Dutch law, or South African law to support the plaintiff's proposition. The special plea of prescription was upheld, and the plaintiff's claim against the sixth defendant was dismissed.

Citation
[2018] ZAGPPHC 497
Parties
Plaintiff: Liberty Group Ltd; Defendant: LO. Erasmus NO; Defendant: LS. Erasmus NO; Defendant: LO. Erasmus; Defendant: LS. Erasmus; Defendant: J.R. Du Toit; Defendant: W.P.B Illman; Defendant: R.J. September; Defendant: F.J. Espag
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
11 July 2018
Case Number
54534/2011
Procedural Posture
Civil Trial / Special Plea of Prescription Determined as a Separated Issue Under Rule 33(4)
Outcome
Special plea of prescription upheld; plaintiff's claim against the sixth defendant dismissed with costs.
Judges
C.P. Rabie
Legal Topics
Prescription Act, Suretyship, Interruption of Prescription, Accessory Liability
Civil Procedure Prescription Act Suretyship Interruption of Prescription Accessory Liability

Case Brief

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Parties

Liberty Group Ltd

Plaintiff

LO. Erasmus NO

Defendant

LS. Erasmus NO

Defendant

LO. Erasmus

Defendant

LS. Erasmus

Defendant

J.R. Du Toit

Defendant

W.P.B Illman

Defendant

R.J. September

Defendant

F.J. Espag

Defendant

Procedural Posture

Civil Trial / Special Plea of Prescription Determined as a Separated Issue Under Rule 33(4)

Legal Issues

  1. 1 Does service of summons on one surety interrupt prescription against another surety of the same principal debtor?
  2. 2 Is the interruption of prescription against a surety also an interruption against co-sureties or the principal debtor?

Ratio Decidendi

The court held that service of summons on one surety does not interrupt prescription against another surety of the same principal debtor. The obligations of co-sureties are independent and accessory only to the principal debtor, not to each other. The extension of the common law exception, whereby interruption of prescription against the principal debtor interrupts prescription against the surety, does not apply in reverse or to co-sureties. The court found no authority in Roman law, Roman-Dutch law, or South African law to support the plaintiff's proposition. The special plea of prescription was upheld, and the plaintiff's claim against the sixth defendant was dismissed.

Court Disposition

Special plea of prescription upheld; plaintiff's claim against the sixth defendant dismissed with costs.

Orders

  • The sixth defendant's special plea of prescription is upheld.
  • The plaintiff's claim against the sixth defendant is dismissed.